How Drug & Alcohol Violations Affect WI Worker’s Comp

Legislative changes that took effect on March 1, 2016 introduced some potential conflicts in Wisconsin’s workers compensation law regarding violations of employers’ drug and alcohol policies, making this area of law increasingly complex.

Temporary Total Disability and Employee “Misconduct”

One new provision states that lost time benefits (Temporary Total Disability benefits) can be denied if the employer has suspended or terminated an injured employee due to “misconduct” or “substantial fault” connected with the employee’s work. Wis. Stat. s. 102.43(9)(e). To define what constitutes “misconduct” or “substantial fault” the law refers to the definitions of those terms in Wisconsin’s unemployment law. There, “misconduct” is defined to include:

(a) A violation by an employee of an employer’s reasonable written policy concerning the use of alcohol beverages, or use of a controlled substance or a controlled substance analog, if the employee:

Had knowledge of the alcohol beverage or controlled substance policy; and

Admitted to the use of alcohol beverages or a controlled substance or controlled substance analog or refused to take a test or tested positive for the use of alcohol beverages or a controlled substance or controlled substance analog in a test used by the employer in accordance with a testing methodology approved by the department.

Wis. Stat. s. 108.04(5)
Reading this section on its own would suggest employers and insurance companies will have greater ability to deny workers compensation benefits based on drug or alcohol violations by injured employees. However, this new “misconduct” provision conflicts with preexisting law that remains in place. That law states an employee who has violated an employer’s drug use policy loses any right to lost time benefits only if the following apply

the employee’s violation occurred during healing period when the employee could return to restricted work

and prior to the date of injury the employer’s policy regarding drug use “was established in writing and regularly enforced by the employer.”

Wis. Stat. s. 102.43(9)(c).
These two additional requirements are not included in the new “misconduct” provision, and for now, it is unclear which section will apply. That question will likely only be answered after future litigation.

Work Injuries Resulting from Drug or Alcohol Policy Violations

Another new provision provides an additional basis for denying benefits. If an employee violates an employer’s policy regarding employee alcohol or drug use, and that violation causes a work injury, the employee loses the right to all worker’s compensation benefits except for medical expenses. Wis. Stat. s. 102.58. Previously, the law provided for a potential 15% reduction in benefits if an injury was the result of intoxication or the use of controlled substances. Obviously, the penalty has become much more severe. It also injects fault into a system that was founded upon a “grand bargain” where employees gave up the right to sue employers for work injuries in exchange for a no-fault system of limited benefits covering medical expense and lost wages. The principles of this “grand bargain” underpinned the treatment of drug and alcohol policy violations under Wisconsin’s previous workers compensation laws.

The changes regarding drug and alcohol violations are only a small part of significant changes to Wisconsin’s workers compensation law that took effect this year (a brief overview of the changes can be found here). Many of the changes are likely to encourage more litigation, especially as employers and insurance companies test the boundaries of potential new ways to avoid liability for work injuries. If your workers compensation claim has been denied, contact the experienced team of workers compensation attorneys at Hawks Quindel for a free consultation to explain your rights and assess your case.

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